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New Jersey Department of Environmental Protection v. Robert and Michelle Huber

April 4, 2013

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF-RESPONDENT,
v.
ROBERT AND MICHELLE HUBER, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice LaVECCHIA

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

New Jersey Department of Environmental Protection v. Robert and Michelle Huber (A-116-10) (065540)

Argued October 23, 2012-Decided April 4, 2013

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers whether, consistent with the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, the New Jersey Department of Environmental Protection (DEP) may conduct an administrative search of permit-restricted residential property under the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30 (FWPA or the Act), without a warrant; and whether there was sufficient evidence to sustain the finding that the FWPA was violated.

Defendants Robert and Michelle Huber own residential property that was developed by prior owners subject to conditions of a duly recorded FWPA permit that controls activities in certain areas of the property. The FWPA authorizes the DEP to regulate New Jersey's freshwater wetlands and "transition areas," which are areas of land adjacent to wetlands that minimize adverse impacts on the wetlands. Landowners must obtain a permit before engaging in regulated activities, such as removing soil, disturbing the water level, adding fill, or destroying plant life. N.J.S.A. 13:9B-3. Without a FWPA permit, regulated activity affecting wetlands is strictly prohibited. N.J.S.A. 13:9B-17. Violations of the Act, its regulations, or a permit or order issued under the Act may lead to civil penalties, costs, and injunctive relief. N.J.S.A. 13:9B-21(a) to (e).

The DEP became involved with the Hubers after a neighbor complained that they were placing fill and mowing vegetation in restricted areas. On July 3, 2002, Michael Nystrom, a DEP supervisor, made a visual inspection of the land and took soil samples. Additional inspections were conducted on August 15, 2002 and other dates by Armand Perez, the DEP's Principal Environmental Specialist, who ascertained that 2,500 square feet of fill had been placed on a slope below the driveway, a lawn had been cultivated, and the deck, patio, and a retaining wall encroached on a conservation easement. The DEP representatives confirmed that property improvements disturbed freshwater wetlands and protected transition areas. The DEP charged the Hubers with removing vegetation and placing fill, disturbing nearly 38,000 square feet of protected areas. The parties reached a tentative agreement that would have allowed the improvements to remain in exchange for restoring a certain area to its pre-disturbance state. The conceptual agreement was contingent upon the Hubers' submission of a formal plan, which the DEP never received. Thus, the DEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (Order) detailing the violations, requiring a full restoration plan, and assessing a $4,500 penalty against the Hubers.

The Hubers appealed and the matter was transferred to the Office of Administrative Law. At the hearing, the DEP presented aerial and other photographs and the testimony of Nystrom and Perez. Nystrom testified that the Hubers permitted him entry to the property to perform his inspection. In his testimony, Mr. Huber admitted to placing fill in the wetlands and in transition areas, stated that he had ceased mowing some of the protected areas in 2003, and denied granting consent to Nystrom's entry onto the land, claiming he was on vacation at the time. The administrative law judge (ALJ) found that the DEP had shown by a preponderance of the evidence that the Hubers had placed fill and were improperly maintaining restricted wetland areas. The ALJ's findings were largely based on Mr. Huber's admissions. The ALJ did not make a specific finding as to whether the Hubers consented to Nystrom's entry. The DEP Commissioner adopted the ALJ's recommended factual findings and conclusions of law, directed the Hubers to comply with the Order, and stated that the DEP would consider allowing certain improvements to remain if the Hubers presented a full restoration plan as to all other aspects of the regulated areas.

The Appellate Division affirmed, concluding that the testimony, photographs, and official records amply supported the findings that the Hubers violated the FWPA. For the first time on appeal, the Hubers argued that the evidence collected by Nystrom should have been excluded because he had not obtained an administrative search warrant. The court rejected that argument, opining that consent was not essential, Nystrom had statutory authority to enter and inspect, and an administrative warrant was not required based on an exception to the warrant requirement. Following a denial and reconsideration, the Court granted the Hubers' petition for certification. __ N.J. __ (2011).

HELD: The exception to the warrant requirement for administrative inspections of commercial property in a closely regulated business recognized in New York v. Burger, 482 U.S. 691 (1987), does not apply to a regulatory inspection of residential property under the FWPA. Land subject to FWPA restrictions, which by law must be recorded, is subject to the statutory, reasonable right of entry and inspection. In exercising that right, the DEP must comply with its processes, which require presentation of credentials before seeking consent to entry at reasonable times. If entry is denied, the Commissioner may order that entry be provided and the DEP is entitled to judicial process to compel access to the property subject to the permit. Here, even excluding Nystrom's testimony about his inspection, there was sufficient evidence to sustain the finding of a violation of the FWPA.

1. The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Warrantless searches are per se unreasonable. In Burger, the Supreme Court authorized a limited exception to the warrant requirement for administrative searches of commercial property used in closely regulated businesses, where the privacy interests of the owner are weakened and the government interests in regulating the businesses are heightened. The factual setting and historical perspective to that exception do not support extending it to the heightened privacy interests associated with private, residential property. Burger's exception does not apply to inspection of residential property under the FWPA. (pp. 27-34)

2. The Supreme Court has acknowledged that judicial process to enforce a reasonable administrative inspection scheme can comply with Fourth Amendment protections, despite the lack of consent by the property owner, if the regulatory scheme advances important governmental interests, takes into account reasonable expectations of privacy, and avoids nonconsensual, forced entry accomplished outside of the warrant framework. The regulatory scheme that implements the FWPA puts the permittee on notice that owning property subject to a FWPA permit renders the property, at reasonable times, subject to a right of entry by a DEP representative for the purpose of an inspection; and it requires the inspector to present credentials prior to exercising the statutory right to enter, inspect, and sample at reasonable times. N.J.A.C. 7:7A-13.1(a)(9). It also authorizes the DEP to assess a civil penalty for refusing a DEP representative's lawful entry. N.J.A.C. 7:7A-16.11. The DEP Commissioner can issue orders to permittees who refuse entry and can bring a civil action to obtain a court order directing the entry. N.J.S.A. 13:9B-21. The Commissioner may also assess a separate violation for denying entry. N.J.A.C. 7:7A-16.11. (pp. 34-42)

3. In the administrative-search context, probable cause to gain court-ordered entry to property may be based on a showing that reasonable legislative or administrative standards for an inspection are satisfied. The FWPA inspection scheme is reasonable as applied to owners of residential property subject to a FWPA permit because such owners must comply with the permit and the permitting scheme that authorizes reasonable entry onto the affected land. The permitting scheme ensures that an order is issued to gain peaceful entry to inspect at a reasonable time if consensual entry is denied. The owner of residential property subject to a FWPA permit cannot claim a full expectation of privacy to areas subject to the permit. The permittee's rights are subject to the statutory scheme by which the permit operates, and that includes submitting to a reasonable inspection scheme. In sum, land subject to FWPA restrictions required by law to be recorded is subject to the statutory, reasonable right of entry and inspection. In exercising that right, the DEP must comply with its processes, which require presentation of credentials before seeking consent to entry at reasonable times. If entry is denied, the Commissioner may order that entry be provided and the DEP is entitled to judicial process to compel access to the property subject to the FWPA permit. N.J.S.A. 13:9B-21(b) &

(c). (pp. 42-48)

4. The Court does not resolve the credibility dispute about whether the Hubers consented to Nystrom's entry. When reviewing the record exclusive of Nystrom's testimony about his inspection, there was sufficient evidence to sustain the findings of a violation based on Perez's inspections, the photographs, and the Hubers' admissions. (pp. 49-53)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, HOENS, and PATTERSON; and JUDGES RODRIGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA's opinion.

Argued October 23, 2012 --

JUSTICE LaVECCHIA delivered the opinion of the Court.

The New Jersey Legislature passed the Freshwater Wetlands Protection Act (FWPA or the Act) in 1987 as a means of protecting and regulating New Jersey's sensitive freshwater wetlands. N.J.S.A. 13:9B-1 to -30; In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 482 (2004). The Legislature pronounced it to be of public importance "to preserve the purity and integrity of freshwater wetlands from random, unnecessary or undesirable alteration or disturbance." N.J.S.A. 13:9B-2. Seeking "to maintain a delicate balance between environmental interests and the rights of property owners," In re Freshwater Wetlands Prot. Act Rules, supra, 180 N.J. at 482, the FWPA established a permitting process to which a property owner must submit before engaging in an activity that risks disturbing freshwater wetlands or protected transition areas near wetlands. The permit review and approval scheme balances a property owner's ability to make use of land on or near freshwater wetlands and the public's interest in preserving these natural resources from impairment that would impede the wetlands' ability to fulfill their integral environmental role.

The FWPA also confers on the New Jersey Department of Environmental Protection (DEP or Department) a statutory right to enter property "for the purpose of conducting inspections, sampling of soil or water, . . . and for otherwise determining compliance with the provisions of [the] act." N.J.S.A. 13:9B-21(m). The regulatory scheme contains a careful series of steps through which the DEP may secure compliance with its inspection and monitoring of freshwater wetlands. This case requires us to examine that scheme in the context of a regulatory enforcement action.

A civil penalty and restoration remedy was imposed on petitioners, Robert and Michelle Huber, as a result of FWPA violations committed on their land, which had been developed subject to FWPA permit conditions. A FWPA General Permit and Transition Area Waiver, issued to predecessors in title and duly recorded, controlled activities in certain areas of the Hubers' property. An administrative hearing substantiated the violations and resulted in the minimum fine and a restoration remedy for the affected property.

On appeal from the final administrative action of the DEP, the Hubers raised for the first time a constitutional argument contesting the right of a DEP inspector to have entered their land without securing a warrant in advance. They argued that the inspector's testimony, based on observations made during that inspection, should not have been included in the record and, therefore, the violations had not been substantiated. The Appellate Division rejected the Hubers' constitutional challenge, in addition to all other arguments raised, and affirmed the administrative penalty.

Based on the reasoning expressed herein, which adopts a different view than that of the Appellate Division as to how the FWPA inspection scheme operates, and operates consistently within constitutional parameters, we affirm the judgment imposing an administrative penalty and a restoration remedy for disturbed freshwater wetlands on the Hubers' property. In recognition of the importance of resolving whether the FWPA's inspection scheme is consistent with the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, we address the issue of administrative searches of permit-restricted residential property under the FWPA. However, our holding that affirms the Appellate Division judgment is rooted in the fact that the record contains sufficient credible evidence, exclusive of the inspector's testimony that was challenged on appeal, to sustain the finding of violations of the FWPA permit.

I.

Because this matter involves the intersection of the private property interests of freshwater wetlands permit holders and the right of reasonable entry that is conferred on state officials by the FWPA, we begin with some background on the Act before turning to the protracted factual and procedural history pertinent to this appeal.

Prior to the FWPA, New Jersey's freshwater wetlands were regulated by the United States Army Corps of Engineers under the federal Clean Water Act (CWA). In re Freshwater Wetlands Prot. Act Rules, supra, 180 N.J. at 483; see 33 U.S.C.A. § 1344. The CWA permitted states to assume responsibility for the federal program provided the state program complied with the federal program and was equally stringent. Ibid. Unsatisfied by the extent of federal regulation of freshwater wetlands, the Legislature assessed whether the state should assume that regulatory responsibility. See generally In re Freshwater Wetlands Protect. Act Rules, 238 N.J. Super. 516, 520-22 (App. Div. 1989) (discussing ramifications of state takeover of federal program). As explained by the Appellate Division when addressing the Act's initial implementation,

[b]ecause the Legislature found that . . . freshwater wetlands protect and preserve drinking water supplies, provide a natural means of flood and storm drainage protection, serve as a transition zone between dry land and water courses retarding soil erosion, provide essential breeding, spawning, nesting and wintering habitats for a major portion of the State's fish and wildlife and maintain a critical base flow to surface waters through their gradual release of stored flood waters and ground water, particularly during a drought, it concluded that these inland waterways and freshwater wetlands need vigorous protection. N.J.S.A. 13:9B-2. The Legislature asserted that in order to advance the public interest in a just manner the rights of persons who own or possess real property affected by this Act must be fairly recognized and balanced with environmental interests; . . . the public benefits arising from the natural functions of freshwater wetlands, and the public harm from freshwater wetland losses, are distinct from and may exceed the private value of wetland areas.

[N.J.S.A. 13:9B-2.]

The Legislature then determined that, in this State, pressures for commercial and residential development define the pace and pattern of land use. Therefore, it was in the public interest to establish a program for systematic review of activities in and around freshwater wetland areas "designed to provide predictability in the protection of freshwater wetlands." Ibid. The Legislature declared that it shall be the policy of this State to preserve the purity and integrity of freshwater wetlands from random, unnecessary or undesirable alteration or disturbance; and that to achieve these goals it is important that the State expeditiously assume the freshwater wetlands permit jurisdiction currently exercised by the United States Army Corps of Engineers pursuant to the Federal Act and implementing regulations. [N.J.S.A. 13:9B-2.] [Id. at 519.]

Accordingly, the Legislature enacted the FWPA, which provided for greater protection to the state's wetlands. See In re Freshwater Wetlands Prot. Act Rules, supra, 180 N.J. at 483 (noting that FWPA authorizes DEP to regulate more wetlands than CWA, regulates more activities than CWA, and unlike CWA, subjects freshwater wetlands transition areas to regulatory control). The FWPA created "a statutory scheme which would not only regulate any activity which could occur in freshwater wetlands, but which would also assume the regulatory function over disposal of dredged or fill material heretofore provided by the Army Corps of Engineers under the § 404 program (N.J.S.A. 13:9B-2)." In re Freshwater Wetlands Prot. Act Rules, supra, 238 N.J. Super. at 520.

Freshwater wetlands, defined as areas "inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support . . . a prevalence of vegetation typically adapted for life in saturated soil conditions," N.J.S.A. 13:9B-3, are divided into three categories:

In the first, and most highly protected category, are freshwater wetlands of exceptional resource value. These wetlands are defined by their discharge points and by whether they are present habitats for threatened or endangered species or whether they have been established as suitable for breeding, resting or feeding by threatened or endangered species during the normal period those species would use the habitat.

N.J.S.A. 13:9B-7a(2). There are two lesser protected categories: freshwater wetlands of ordinary value, which are defined as those wetlands which do not exhibit the characteristics of freshwater wetlands of exceptional resource value and which are certain isolated wetlands, man-made drainage ditches, swales or detention facilities, N.J.S.A. 13:9B-7b; and freshwater wetlands of intermediate resource value, which are all freshwater wetlands not included within the other two categories. N.J.S.A. 13:9B-7c. [In re Freshwater Wetlands Prot. Act Rules, supra, 238 N.J. Super. at 518-19.]

The FWPA also protects "transition areas," which are areas of land adjacent to freshwater wetlands which minimize adverse impacts on the wetlands or which serve as an integral component of the wetlands ecosystem. N.J.S.A. 13:9B-3. They are more specifically defined in terms of distance and type in N.J.S.A. 13:9B-16. The type of activities limited in transition areas, as well as the circumstances under which a waiver of the requirements may be obtained, are described in N.J.S.A. 13:9B-17 and N.J.S.A. 13:9B-18. [Id. at 522.]

In this comprehensive environmental legislation that balances public and private interests, the Legislature decreed that property owners "seeking to engage in regulated activities in . . . wetlands must apply for and secure either a general or an individual permit from the DEP." In re Freshwater Wetlands Prot. Act Rules, Statewide General Permit, Cranberry Expansion, 180 N.J. 415, 422-23 (2004) (footnote omitted). Regulated activities include

(1) The removal, excavation, disturbance or dredging of soil, sand, gravel, or aggregate material of any kind;

(2) The drainage or disturbance of the water level or water table;

(3) The dumping, discharging or filling with any materials;

(4) The driving of pilings;

(5) The placing of obstructions;

(6) The destruction of plant life which would alter the character of a freshwater wetland, including the cutting of trees[.] [N.J.S.A. 13:9B-3.]

The Legislature authorized the DEP to consolidate regulatory programs affecting activities in freshwater wetlands with the FWPA permit process. N.J.S.A. 13:9B-5(a). It established procedures for obtaining letters of interpretation and for obtaining a permit to engage in a regulated activity, N.J.S.A. 13:9B-8, -9; created a "rebuttable presumption that there is a practicable alternative to any nonwater-dependent regulated activity that does not involve a freshwater wetland, and that such an alternative . . . would have less of an impact on the aquatic ecosystem," N.J.S.A. 13:9B-10(a); delineated the considerations to be factored into assessment of the public interest in allowing the activity on wetlands when weighed against the rebuttable presumption that an alternative could be developed that would not affect the wetlands, N.J.S.A. 13:9B-10, -11; and identified conditions that may be attached to the issuance of permits, N.J.S.A. 13:9B-13. In re Freshwater Wetlands Prot. Act Rules, supra, 238 N.J. Super. at 523. Absent issuance of a FWPA permit, or unless otherwise permitted under the Act, regulated activity on or affecting freshwater wetlands is strictly prohibited. See ibid.; see also N.J.S.A. 13:9B-17 (addressing prohibited activity in transition areas), -18 (providing for waivers in connection with activity in transition areas). Violations of any provision of the Act and its rules and regulations, or of a permit or order issued pursuant to the Act's provisions, may result in imposition of civil penalties, costs, and injunctive relief. See N.J.S.A. 13:9B-21(a) to (e).*fn1

With that structure and background of the statutory scheme as a backdrop, we turn to the Act's application to the ...


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